Opinion analysis: A small victory for minority voters, or a case with “profound” constitutional implications?

Posted Wed, March 25th, 2015 12:33 pm by Richard Hasen

It is easy to read the Supreme Court’s five-to-four decision in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama as a mostly inconsequential case giving a small, and perhaps only temporary, victory for minority voters in a dispute over the redrawing of Alabama’s legislative districts after the 2010 census. Indeed, although the Supreme Court sent this “racial gerrymandering” case back for a wide and broad rehearing before a three-judge court, Alabama will be free to junk its plan and start over with one that may achieve the same political ends and keep it out of legal trouble. But Justice Antonin Scalia in his dissent sees the majority as issuing “a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the State in managing its own elections.” Time will tell if Justice Scalia’s warning against the implications of what he termed a “fantastical” majority opinion is more than typical Scalian hyperbole. And we may know soon enough as these issues get addressed in racial gerrymandering cases from Virginia, North Carolina and elsewhere.

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As explained in this case preview, this case concerns a challenge to state legislative districts drawn by the Alabama legislature after the 2010 census. The legislature, newly controlled by Republicans, drew a redistricting plan that contained the same number of majority-minority Senate districts and one additional majority-minority House district compared to the 1990s plan drawn by a court and the 2000s plan drawn by a Democratic legislature. Because of population shifts and declines, as well as the composition of the original 2001 districts, the African-American districts were the most underpopulated of all the districts, meaning that many voters had to be shifted into these districts to comply with “one person, one vote” requirements.

The state legislative leaders in charge of redistricting set as a goal a deviation in population of no more than two percent across districts. Further, the leaders instructed the consultant charged with redistricting to maintain not only the same number of majority-minority districts in the two state houses but also the same percentage of African Americans within each district. The leaders and consultant indicated they kept the same percentage of African-American voters in each majority-minority district in order to comply with the non-retrogression principle of Section 5 of the Voting Rights Act.

The result of these two commands led to the shifting of many more African Americans into these majority-minority districts. The upshot of these changes in the context of Alabama was to pack more of the state’s African Americans, the state’s most reliable Democratic voters, into fewer districts, thereby strengthening Republican voting power in districts throughout the rest of the state.

Black and Democratic legislators, voters, and groups brought a number of challenges to the state redistricting plan, including a vote dilution challenge under Section 2 of the Voting Rights Act and racial and partisan gerrymandering claims. A three-judge federal court divided two to one on the racial gerrymandering claim, the only claim currently before the Supreme Court. To win on a racial gerrymandering claim, the plaintiffs need to show that race was the “predominant factor” in redistricting, more important than traditional redistricting principles. If the state can show it complied with traditional districting principles or even that its intention was purely partisan, not racial, the state would win.

The lower court majority sided with Alabama, stating that the Republican post-2010 census plan was just partisan politics no different than what the Democrats did in the 2000 round of redistricting. On the specific question whether the Alabama redistricting plan was an unconstitutional racial gerrymander, the lower court majority held it was not: the state’s predominant motive in redistricting was complying with the two-percent population deviation maximum as part of the “one person, one vote” principle, not dividing voters on the basis of race. Further, the court held that any division of voters on the basis of race was justified by the state’s requirement to comply with the non-retrogression principle of Section 5 of the Voting Rights Act.

The dissent disagreed on all counts, arguing that race was the predominant factor in redistricting, and Section 5 did not require the maintenance of the same percentage of minority voters in each majority-minority district. Further, since the Supreme Court’s 2013 decision in Shelby County v. Holder,holding the preclearance formula unconstitutional, eliminated the preclearance requirement for Alabama, compliance with Section 5 could no longer be a compelling interest to justify a racial gerrymander.

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In the Supreme Court, Justice Anthony Kennedy sided with the more liberal Justices, over the objections of the four more conservative Justices, to rule against Alabama and send the case back for a do-over. Much of the dispute between the majority and the dissent concerned issues likely to be unimportant in other voting cases: whether one of the sets of plaintiffs had standing and whether a key argument of the parties was preserved on appeal. Justice Breyer’s majority opinion even included an appendix to show where an argument was raised in the court below.

The majority said that the lower court erred in considering whether Alabama’s legislative redistricting plan as a whole was an unconstitutional racial gerrymander. The majority sent the case back to a lower court to consider the issue on a district-by-district basis. It said that the lower court could consider new evidence as well as other claims which the Supreme Court did not reach, such as the “one person, one vote” challenge.

But the Supreme Court majority did more than simply send the case back for a new hearing. It very strongly suggested that at least some of the districts were unconstitutional gerrymanders. It began by taking away two of the state’s strongest arguments.

First, the Court said Alabama was wrong to the extent it believed that Section 5 of the Voting Rights Act required Alabama to pack more African-American voters into districts in order to keep the same percentage of African Americans in each majority-minority district. This was a misreading of what Section 5 required and such a reading could actually hurt minority voters.

Second, the Court said that Alabama could not point to its desire to have more equally populated districts as its real predominant factor in redistricting. In other words, the majority rejected the argument that the state could not engage in racial gerrymandering if its first order of the day was to maintain equally populated districts. The majority took compliance with “one person, one vote” out of the equation, saying this was something that was a “background” rule to be considered before determining whether race is a predominant factor. It calls into mind Daniel Lowenstein’s critique of the predominant factor test from Shaw v. Reno as nonsensical when it comes to how legislatures decide how to redistrict.

In the end, the majority all but instructed the lower court to find that at least some of the districts were unconstitutional racial gerrymanders: “For example, once the legislature’s ‘equal population’ objectives are put to the side—i.e., seen as a background principle—then there is strong, perhaps overwhelming evidence that race did predominate as a factor when the legislature drew the boundaries of Senate District 26, the one district the parties have discussed here in depth.”

The Court then left open the question whether compliance with Section 5 could be a compelling interest to justify what would be an otherwise unconstitutional racial gerrymander and, no doubt at the urging of Justice Kennedy, added this sentence: “Finally, we note that our discussion in this section is limited to correcting the District Court’s misapplication of the ‘predominance’ test for strict scrutiny discussed in Miller, 515 U. S., at 916. It does not express a view on the question of whether the intentional use of race in redis­tricting, even in the absence of proof that traditional districting principles were subordinated to race, triggers strict scrutiny. See Vera, 517 U. S., at 996 (KENNEDY, J., concurring).”

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Justice Scalia, who wrote the principal dissent, argued mostly on the question of standing and on whether the district-by-district issue was preserved on appeal. He believed that the case was not properly litigated or the issues preserved: “This disposition is based, it seems, on the implicit premise that plaintiffs only plead legally correct theories. That is a silly premise. We should not reward the practice of litigation by obfuscation, especially when we are dealing with a well-established legal claim that numerous plaintiffs have successfully brought in the past.” Despite his opening hyperbolic statement, Justice Scalia offered very little to explain what parade of horribles would result from the interpretation of the racial gerrymandering claim in this way. Justice Thomas, while joining (along with the Chief Justice and Justice Alito) in Justice Scalia’s dissent, dissented separately as well, to express his disagreement more broadly with Voting Rights Act jurisprudence and the permissible consideration of race in redistricting.

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What is the significance of today’s Alabama ruling? It seems likely on remand that at least some of Alabama’s districts will be found to be racial gerrymanders. This means that some of these districts will have to be redrawn to “unpack” some minority voters from these districts. But do not be surprised if Alabama preempts the lawsuit by drawing new districts which are less racially conscious but still constitute a partisan gerrymander which helps the Republicans have greater control over the Alabama legislative districts. As I have noted, lurking in the background of this case is the “race or party” problem: with most Democrats in Alabama being African Americans and most Republicans being white, how does one determine whether a predominant factor in gerrymandering is race or party?

On that score, the case may have somewhat broader implications even if not the earthshattering ones promised by Justice Scalia. Although Republican states which pack minority voters into districts can no longer claim to do so to comply with Section 5 of the Voting Rights Act (thanks to the Shelby County case), they still may claim to do so to comply with Section 2 of the Act. Indeed, as Professor Justin Levitt has shown, minority packing and reliance on the Voting Rights Act have become a familiar tool for Republican legislatures looking to gain advantage by packing likely Democratic voters into a smaller number of districts. Many Democrats and minority voters have challenged such plans as unconstitutional racial gerrymanders.

Today’s decision gives these challengers a new tool, making it harder for states to use compliance with the Voting Rights Act as a pretext to secure partisan advantage. All in all, this may help stop some egregious gerrymanders, but there will still be plenty of ways for states to draw district lines for partisan advantage without running afoul of the Voting Rights Act. And depending upon how the Court decides the Arizona redistricting case later this Term, states may have even a freer hand to draw lines for nakedly political purposes.

So chalk this up as a small, albeit real, victory not only for minority voters but also for irony. The “racial gerrymander” cause of action, which was the basis for conservatives to challenge the creation of extra majority-minority districts under the Voting Rights Act, has now become a tool by those who hate the cause of action to protect minority voting rights.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.